Jul 10, 2023, 21:40 PM by Neil Reichenberg, HRCI Contributing Writer

At the end of its most recent term, the United States Supreme Court ruled that admissions systems that considered the race of applicants violated the Fourteenth Amendment’s Equal Protection Clause. The Pregnant Workers Fairness Act became effective on June 27th and the Equal Employment Opportunity Commission (EEOC) released an updated poster that employers must display. The House Committee on Education and the Workforce held a hearing recently on skills-based hiring.

At the end of its most recent term, the United States Supreme Court ruled that admissions systems that considered the race of applicants violated the Fourteenth Amendment’s Equal Protection Clause. The Pregnant Workers Fairness Act became effective on June 27^th and the Equal Employment Opportunity Commission (EEOC) released an updated poster that employers must display. The House Committee on Education and the Workforce held a hearing recently on skills-based hiring.

 

Supreme Court Bars Use of Race in College Admissions – In a pair of 6 – 3 decisions, the United States Supreme Court ruled that the admissions systems used by Harvard College and the University of North Carolina (UNC) violated the Equal Protection Clause of the Fourteenth Amendment.  Chief Justice Roberts who wrote the majority decision in the cases of Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard College concluded “the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.” While this case is limited to college admissions, it may be indicative of the way the court might rule in an employment case challenging affirmative action.

 

Both Harvard and the University of North Carolina have admissions processes that take the race of applicants into account. The Students for Fair Admissions brought separate lawsuits alleging that the admission policies of Harvard and the University of North Carolina violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. The lower federal courts upheld both admissions policies.

 

In reversing the lower court decisions, the Supreme Court noted that strict scrutiny is required for any exception to the equal protection requirement contained in the Constitution. This standard requires an initial determination as to whether the racial classification furthers a compelling governmental interest and if so, whether the use of race is narrowly tailored to achieve that interest. According to Chief Justice Roberts, there are only “two compelling interests that permit resort to race-based government action. One is remediating specific, identified instances of past discrimination that violated the Constitution or a statute. The second is avoiding imminent and serious risks to human safety in prisons, such as a race riot.”

 

The majority cited a 2003 decision in the case of Grutter v. Bollinger which concerned the admissions system used by the University of Michigan law school in which the Supreme Court endorsed for the first time the belief that student body diversity is a compelling state interest justifying the use of race in university admissions. However, according to Chief Justice Roberts, the Grutter decision mandated that race-based admissions programs must end at some point, with 25 years being the time limit contained in that decision. Chief Justice Roberts observed that neither of the universities involved in these cases had an end date for their admissions programs.

 

Chief Justice Roberts concluded his opinion by stating that “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. He noted that “In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.”

 

PWFA Becomes Effective – On June 27^th, the Pregnant Workers Fairness Act (PWFA) became effective and requires employers with at least 15 employees to provide reasonable accommodations for pregnancy, childbirth, or related medical conditions unless the accommodation would impose an undue hardship on the employer. Reasonable accommodation would need to be arrived at through an interactive process between employees and employers similar to what is required under the Americans with Disabilities Act.  The law was passed by Congress and signed by President Biden in December 2022.

 

The Equal Employment Opportunity Commission (EEOC) announced that it will be accepting charges of discrimination alleging violations of the PWFA that occurred on or after June 27^th. EEOC Chair Charlotte A. Burrows stated “The EEOC stands ready to support employers as they carry out the PWFA’s directives and to support workers in receiving the accommodations they are entitled to under the PWFA.” EEOC has released a revised Know Your Rights poster that employers need to place in a conspicuous location. A fine of $659 can be levied against employers that do not display the required poster.

 

 

House Committee Holds Hearing on Skills-Based Hiring – The House Committee on Education and the Workforce held a hearing on “Competencies Over Degrees: Transitioning to a Skills-Based Economy. Representative Virginia Foxx (R-NC), chair of the committee stated that under skills-based hiring, “all learning should count. If a worker has the skills and competencies to do the job, it should not matter how or where they obtained those skills. They should have the opportunity to compete for the job.” She noted that an increasing number of employers are removing degree requirements for jobs and “This approach not only widens the talent pipeline but has also proven to be more effective in hiring and retaining a high-performing workforce.” She called on Congress to reauthorize the Workforce Innovation and Opportunity Act.

 

Among the witnesses was Dr. Karin Kimbrough, Chief Economist, LinkedIn Corporation who discussed a recent report, “Skills-First: Reimagining the Labor Market and Breaking Down Barriers”, which found that in the United States, “the impact of shifting to a skills-first approach would increase the number of qualified, eligible workers by nearly 20 times. She noted that the effect would vary greatly by industry, with the largest impact in those industries requiring overlapping skills across occupations such as consumer services, retail, and administrative and support services. She stated that a skills-first approach to hiring would be beneficial to younger workers by “increasing the talent pool by 18 times for Gen-X workers; 18.6 times for Millennial workers; and 21.5 times for Gen Z workers.”

 

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.